Submissions (Rechts-schriften)

• Is there another lawyer involved? Make sure that you do not accept the mandate if another lawyer is involved already. Do ask the client explicitly about this immediately.

• Ask the client for the power of attorney (they may do that online here: https://asylex.ch/?templatesPowerOfAttorney). Make sure the case is on Zenobis and your marked as responsible person, so the Office team will send you the power of attorney immediately.

• Ask the client for the file and for a confirmation by social aid that they are dependent on social aid (applies in most cases).

• With the power of attorney, ask the SEM (for asylum / Dublin appeals) / Cantonal migration office (for detention, AIG) to send you the entire file as soon as possible (--> Templates). For SEM, you have to send the request by postal mail, for the cantonal migration offices, check here how to do it. Inform the client once you received the files.
  Insider advice: You may also ask the previous lawyer to send you the file - oftentimes this is faster than waiting for SEM's file! 

• Study the file and particularly the final decision. Take notes about what questions you want to ask your client and reach out to your client to discuss these. At the same time, make a first case assessment and inform the client about the chances of success and the timing (expectation and time management) as well as about potential costs involved (court fees) and about who will submit the appeal (a lawyer, you or the client themselves; see below). 

• Start drafting the appeal. If you are unsure about something, reach out to your mentor, team leader or the office team for guidance. Keep your client updated and send them a short notice every few days, so they know that you are working on it. Instruct them to stay in touch and not to discappear / go into hiding.

• For the drafting, consider the following:

1. Start with a template - but make sure you amend the template for the case at hand!

2. Write the formal part - make sure you double check the deadline and all legal provisions you find in the template.

3. For asylum appeals, credibility is always a big topic - are our clients telling the truth or not? Finde some guidance for this here. Establish in your appeal why your client's statements are in fact credible, ask your client for explanations and possibly further evidence.

4. Go through the decision and the counterparty's arguments step by step and bring a counteragrument for each statement of the counterparty.

5. Write down the factual part from your client's perspective without any contradictions. 

6. Try not to repeat the client's statements in indirect speech but state them as facts. We represent and believe the client and want to emphasize that he actually experienced things that way.

7. Make sure that you choose the correct term for the client in each submission. In a application we speak of the "applicant" and at the appeal level we speak of the "complainant". We try to avoid speaking of "our client" wherever possible.

8. For the legal part,  start with what you have learned at university: Explain the applicable legal provision, and then explain how this provision applies for the case at hand.

9. Look out for legal mistakes in the decision and challenge them in the appeal. 

10. Do not forget to mention any violation of international law - in particular art. 3 ECHR / Art. 3 CAT; in case of women also CEDAW provisions, for children CRC provisions and if racial discrimination is at stake also CERD provisions.

11. Search for relevant case law (www.bvger.ch and/or Asylwiki) and include it in the appeal.

• Once you have a first draft, send it to a senior volunteer for review. If you are a senior volunteer yourself, make sure to send it to another volunteer to comply with the 4-eyes-principle. Implement the inputs.

• During the entire procedure, stay in constant contact with you client. Clients are very insecure in this situation, and therefore they might contact another lawyer or leave Switzerland out of fear from a deportation - you are the one who can prevent this! 

• Partcularly once you have written your draft, you should reach out to your client and send it to them for review. If they do not understand the language, use Deepl or Google Translate (anonymized versions!) to translate it for them.

• Once you have finalized your appeal, read through it again, prepare all the annexes and print it all twice (unless you submit it electronically - for this you would require a qualified e-signature though). Make sure you have enough time for this - it takes quite a while! If you don't sent it yourself (i.e. if a lawyer or the client submits it), make sure they get it early enough for printing / dispatch.

• Sign the appeal  with your qualified e-signature and submit it electronically (see seperate instructions), or send to  copies with your real signature, no scan or copies are allowed by mail! If someone else will submit it in their name, make sure they get the final version in due time with the relevant instructions for submission.

• Tag the annexes ("Anhang 1, Anhang 2", etc.), check whether everything is complete and bring the appeal to the post office to send it with registered letter (Einschreiben) or submit it electronically.

• Keep the post or electronic submission receipt as evidence and ask for reimbursement!

• Inform the client about the next steps, save everything on Zenobis and save an anonymized version of your appeal on G-Drive!

Deadlines are key for appeals. Appeal deadlines are set by law and cannot be extended. If you miss the deadline, nothing can be done anymore - so DON'T MISS IT!

For asylum appeals, the deadline is normally 7 working days (expedited procedure), for Dublin and no-entry decisions it's 5 working days (article 108 AsylG). For asylum appeals in the extended procedure it's 30 days.

To calculate the deadline, take the day the client or you (or rather AsyLex) received the decision, go to the subsequent day, and calculate the number of days from there. In case the client was previously represented by another lawyer, the day this lawyer received the decision is the relevant starting day for the appeal deadline (usually the decision contains a confirmation of receipt (Empfangsbestätigung)). If the last day is a Saturday, Sunday or Swiss-wide holiday, the deadline ends the first working day after.  There are NO COURT HOLIDAYS in asylum proceedings!

You may also use www.fristenrechner.ch - again, deactivate the court holidays! Further note that the Fristenrechner does not help with the calculation of working days as you would need for Dublin appeals, for example. 

The deadline's final day is the day on which you have to submit your appeal to the post office - remember to send it by registered mail!

Make sure you are ready with your appeal as soon as possible, to make sure the person reviewing it will have enough time before the deadline ends.

Generally, the office team will add the deadline directly in Zenobis - it is your responsibility as a legal advisor to double-check these deadlines and to mark them as "done" once they are not relevant any longer.

Please assess this question in the very beginning of the process. There are appeals which have to be submitted by a qualified lawyer due to cantonal or national laws (e.g. in AG, TG, BE, FR as well as in all criminal law proceedings).

Moreover, before BVGer free legal representation is granted to qualified lawyers only.  Therefore, generally the following rules apply:

• Submission by qualified lawyer (Lea or another qualified lawyer in the team): 

  1.  if required by law (AG, TG, BE, FR and criminal proceedings)

  2. before BVGer if the appeal has realistic chances of success and we, therefore, ask for free legal respresentation.
     In these cases, make sure you send the draft appeal as soon as possible - generally 1 week before the deadline - to the lawyer for review.

• Submission by you as volunteer: If the cantonal law does not require a submission by a qualified lawyer and if we do not ask for free legal representation before BVGer, you may submit the appeal yourself (if you have a substitutional power of attorney [only seniour volunteers get one upon approval by the team leader] - otherwise ask your team leader or office team to submit). Do not forget to submit, together with the power of attorney, your own substitutional power of attorney. Please make sure that at least one seniour volunteer reviewed your appeal, give them at least one week for the review.

• Submission by client: In cases where there are no realistic chances of success at all and the appeal is mainly written to ensure access to justice and to give the client some extra time to accept a decision, we may also ask the client to submit it themselves once we prepared it. In this case, obviously no power of attorney is required. This is valid for all proceedings, also those where a qualified lawyer would be required - anyone can always submit an appeal for themselves!

• Deadline: Check the deadline - sometimes it's 5 working days, 7 working days or 30 days. In cantonal proceedings, also other deadlines apply. Note that you are supposed to know the correct deadline, even if the instructions on the decision (Rechtsmittelbelehrung) are wrong! For the calculation of the deadline, see the instructions above.

• Court fees: Note that court fees might apply, and therefore always ask for an exemption of court fees and for a waiver of an advanced payment.

• Suspensive effect: Not all appeals have automatically suspensive effect - therefore, you better ask for it. Particularly in Dublin appeals you have to ask for suspensive effect explicitly, but also in some other proceedings. To be on the safe side, you might just ask for suspensive effect in any appeal, even if not required, it also does not hurt.

• Asking for free legal aid: Try to get an exemption from court fees by asking for this in the requests and by explaining why in the reasoning. The requirements are that (i) the client has no money and (ii) the appeal is not without merits.

• Submission by qualified lawyer: Before BVGer, anyone can represent a client, also volunteers without a bar exam. However, if we ask for compensation for the legal representation (which we only do if the appeal has good chances of success), the appeal has to be submitted by a qualified lawyer (in certain cases by an AsyLex employee with MLaw).

• Invoice (Kostennote): We should submit an invoice with the appeal whenever we represent a client (either by non-lawyer or by lawyer). If we ask for free legal representation, the invoice provides the court some guidance regarding the determination of the compensation that AsyLex will get. If we do not ask for free legal representation, the invoice is decisive when we win and the court tells the counterparty to compensate us. 

• Requests and reasoning: This is the core of each appeal - the requests (Anträge / Rechtsbegehren) and reasoning for each request. Make sure you start with the request which is your first priority, then your second priority, etc. Finish with the procedural requests. Make sure you add some reasoning for each request, and ideally you also structure your appeal along the lines of your requests.

• Annexes / File: Normally, you have the challanged decision, the power of attorney, you substitutional power of attorney plus the invoice as annexes to the appeal. If you have new evidence which is not in the counterparty's file, you should also add it as an annex. You don't have to submit documents which are in the counterparty's file to the court though, since the court will get the entire file of the counterparty (you might make a respective request: "Die Akten der Vorinstanz seien zu editieren.").

• Written vs. oral proceedings: For asylum appeals, always written proceedings are held before BVGer. It's different for criminal proceedings, where it's always an oral proceeding before the first court; and also in detention proceedings, where the hearing about the detention order as well as about release requests are held orally (exception: Dublin detention reviews are always written). Appeal proceedings in detention cases are also in writing only though. 

• In a very first step, the court decides about the court fees, notably whehter an advanced fee has to be paid or not. In Dublin cases or other appeals with no automatic suspensive effect, the court also decides on the granting of the suspensive effect.

• During material asylum appeals, suspensive effect is granted by law, during Dublin appeals, it is in most cases granted by the court.

• As a next procedural step, the counterparty can comment on the appeal (unless the court considers the appeal without any merits at all, then it will decide directly).

• Normally, we can then write a replica to the counterparty's statement. 

• The procedure can take a few weeks only or a year or more - so please be patient! 

• Keep the client informed about everything and follow up with them once in a while, since otherwise they might loose trust. 

• Tell the client to inform you immediately if anything new comes up - e.g. medical issues, medical reports, new evidence, pregnancy, etc. Submit any such news immediately to the court.

If you don't have a substitutional power of attorney or for any other reason (no printer, no QES), you can ask the office team (office@asylex.ch) to make your submission. For easy processing, please follow these instructions: 

• Send the document ready to print as a Word and/or PDF file with either your name so we can sign on behalf of you (only allowed in rare cases!) or already fill in the name of the person present in the office so she/he/they can sign it.

• Send the enclosures already labeled (directly on the PDF document, this works very easily with the text field function of PDF preview) and in one document in the same email. If merging the documents does not work, then please name the individual PDF files in the document title ("Enclosure 1", etc.).

• Mention the case number in the email headline and/or the document name. 

• Make a note on Zenobis and add a Taks/Frist “Versand durchs Office”.

• Please avoid sending documents on the same day of the deadline.

• If the document needs to be brought to the post office the same day, please send it by 2 pm to office@asylex.ch or directly to the person present in the office that day.

If you have questions regarding this process, please contact admin@asylex.ch.

Make sure that you stay constantly in touch with your client. Inform them upfront about potential risks and downsides of an appeal and also the costs it might imply.

Also make sure that the client has no other lawyer involved. If another lawyer is involved, please coordinate with them directly or ask the Office team/your mentor for support.

Update your client about every step of the procedure and make sure you send them the final submission and any decisions you receive from the court.

Generally, we communicate online with our clients. If you consider it as necessary / helpful, you may meet your client in person or communicate by phone. Please do not provide your personal phone number, instead you should call them with you number not visible. For in person meetings, you can use the meeting room at the office in Zurich - please reach out to the Office team (office@asylex.ch) in advance to make sure the meeting room is available.

In most cases, we ask for exemption from court fees since our clients are not in a position to pay this. Such exemption is granted if (1) the client has no money and (2) the court considerts the case as not without merits. Make sure you ask for such exemption explicitly in your appeal!

If we win the case in the end, no court fees have to be (re)paid anyway.

If we loose the case and free legal aid was granted, no repayment is required at this point, but the client might have to pay it once s/he has money. For people with F permit, meaning they are not dependent on emergency aid only, the court may even ask for immediate payment.

If we loose the case and no free legal aid was granted, the client has to pay the court fees in theory. In this situation, send a request for a waiver of the court fees to the court, to make sure they do not enforce the claim (which they actually never do anyway).

In most proceedings, we ask for free legal aid. Free legal aid consists of (1) exemption from court fees plus, potentially, (2) free legal representation (meaning reimbursement for AsyLex, regardless of the outcome of the case). Depending on the chances of success, we ask for (1) only or for both.

If we ask for free legal representation, the appeal has to be submitted by a qualified lawyer. Free legal representation is only granted if the court thinks that the case has good chances of success.

In your first case assessment, you should therefore consider whether the case will likely have good chances of success. If so, arrange with a qualified lawyer (Lea) who will submit it and by what date they want to received the appeal for review. If the chances are not realistic, and/or if the qualified lawyers have no resources, you may submit it yourself directly or, in case of very little chances, write it as a "Laienbeschwerde" which will be submitted by the clients themselves.

If we do ask for free legal representation, we have to request this specifically, we have to explain why we do so and we should submit an invoice. Generally, for an appeal before BVGer the invoice might amount to around CHF 1'500.- to CHF 2'500.-.

Before you send the submission, please check the following:

• Review by someone else?

• Ensured that the correct person will send it? (lawyer if legal aid requested, you if not, client if low chances)

• Correct deadline?

• Correct instance of appeal?

• Final check with client?

• Final language check?

• All legal requests have a paragraph?

• Asked for free legal aid if required?

• Used AsyLex template?

• Checked if date is correct?

• Are all annexes cited in the right places and listed correctly?

• Printed out appeal and all annexes twice?

• All pages of appeal?

• All pages of annexes?

• Added substitute PoA if applicable?

• Signed appeal twice (on real paper, no scans allowed!)?

• Sent by registered mail?

• Kept the receipt and asked for reimbursement?

• Updated Zenobis including uploading the final appwal and all annexes with proper label?

• Informed client?

Maybe you also want to check the overview of frequent mistakes in appeal drafts, to ensure that you don't do the same mistakes... :-)

Please find guidance in our Bryter Tool as well as on G-Drive.